Regulatory review in the United States

2018-10-27 来源: 51due教员组 类别: Essay范文

下面为大家整理一篇优秀的essay代写范文- Regulatory review in the United States，供大家参考学习，这篇论文讨论了美国的法规审查。美国的法规审查，指的是法定的有权机关依据一定程序对法律规范性文件的合法性或合宪性进行审查；其实体的核心内容在于适用不同的审查标准来检验法律规范性文件对基本权利的限制是否正当。从法规审查建制较成熟和实务经验较丰富的西方发达国家来看，审查标准堪称法规审查的关键技术。美国法院在这项工作上已建立了以双重标准为基础的类型化标准体系。

The
examination of laws and regulations refers to the examination of the legality
or constitutionality of legal normative documents by legal authorities
according to certain procedures. The core content of its entity lies in the
application of different review standards to test whether the restrictions of
legal normative documents on fundamental rights are justified. Judging from the
western developed countries with more mature and practical experience, the
review standard is the key technology of the review. The U.S. courts have
perfected this work and have established a typed standard system based on double
standards.

In
the United States, freedom is traditionally divided into spiritual freedom and
economic freedom, and equality is divided into "suspect
classification" and "general classification". Therefore, loose
and strict standards are applied to the legality review of the restriction of
fundamental rights in different fields. Later, with the changes in the
socio-political and economic environment and the changes in the court's human
rights protection strategy, the court lowered the censorship standards for part
of spiritual freedom and gradually improved the censorship standards for part
of economic freedom. In this way, the rigid structure of double standards has
liquidity. In order to adapt to the fact of the change of double standard
structure, it is necessary to reconstruct the former double standard. At
present, China's regulatory review still lacks such operational technology. The
analysis of American double standards can provide useful reference for the
construction of China's code review standard system.

The
prototype of American double standards is derived from footnote 4 of United
States v, Carolene Products in 1938. Justice Stone here systematically
expresses the famous double standard theory in the form of notes. The summary
of this note is as follows: when government legislation or measures involve
fundamental rights unrelated to democratic procedures, that is, fundamental
rights in the economic and social sphere, the court respects the legislation
and adopts the principle of constitutional presumption. The constitution
expressly forbids infringement of fundamental rights and the application of the
constitutionality presumption principle will be restricted. The fundamental
rights enshrined in the first ten amendments to the U.S. constitution should be
particularly protected and scrutinized by the courts, and article 14 of the
amendment should be adopted to apply these constitutional rights, which were
originally directed against the federal government, to the states. The
fundamental rights limited by the government, such as those relating to
democratic procedures, will be examined more strictly by the courts under
article 14 of the constitutional amendment than laws affecting economic
procedures. These rights include the right to vote, the right to free speech,
the right to political association and the right to freedom of peaceful
assembly. Governmental restrictions on the fundamental rights of minorities
that have long been separated and isolated from the public should also be
subject to increased scrutiny by the courts, since the violation of those
fundamental rights could easily lead to obstruction of the functioning of
democratic processes expected to protect minorities.

Academic
interpretation in Stone justice annotations, think it means the court cases
involving spiritual liberty and equal rights of ethnic minorities than economic
liberty is more strict censorship, its legitimacy basis superiority lies in the
spirit of freedom is the value of economic freedom on the one hand, on the
other hand is the democratic political process to the basic role of democracy.
At the same time, double standards are also based on the constitutional norms
of the provisions of the basic rights to protect the varying degrees of the
text itself.

Since
then, the court actively implemented the annotated opinion four in the trial
practice. In a series of cases since 1940, the courts have mostly scrutinized
cases involving fundamental rights such as freedom of speech, elections,
travel, migration and litigation, as well as restrictions on the rights of
minorities to equality. However, the examination of property rights cases is
carried on the traditional non-interference attitude and adopts the most
relaxed examination standard. In this way, the double standard established by
the annotated fourth of the Carolene Products judgment was established in the
practice of regulatory review.

But
in the days of the berge court and the court of lunkhurst, there have been some
departures from traditional double standards. For example, in the case of Lynch
v.h. ousehold Finance Corp in 1972, the Supreme Court clearly declared that it
was wrong to distinguish rights as "liberty" and "property
rights". People have the right not to be illegally deprived of property.
Property rights are the same as freedom of speech and travel. Property rights
and freedom cannot exist alone. Since the 1990s, the Supreme Court has
significantly improved its examination standards for laws that restrict
property rights, almost to the same degree as the regulations that limit
spiritual freedom.

The
standards of review for freedom of speech cases in the field of spiritual
freedom are also divided. In the long trial practice, the court has developed
some complicated examination standards for free speech cases. In order to make
these standards easy to be understood and mastered by ordinary people, both the
practical and theoretical circles are committed to establishing an integration
theory, so that these complex and difficult standards can be more clear and
simple under the integration theory, which is known as the two-track theory and
the two-level theory. In this way, freedom of speech is systematically typed,
so that each type of speech corresponds to a specific standard of censorship.

It
can be seen from the trend that the degree of review of property rights is
improved and the degree of review of freedom of speech is typed. Although the
examination standards of some property rights restriction cases are not as
strict as that of "high value speech" cases, the degree is not lower
than that of "low value speech" cases. On the other hand, due to the
loose interest measurement standard for the regulation of "non-content
speech", the degree of review of some cases is actually equivalent to that
of the traditional reasonable review of property rights. In this way, the
static dualistic structure of traditional double standards for spiritual
freedom and economic freedom review no longer exists, and the application of
double standards becomes more relaxed and mobile.

In
fact, the double standard theory is the product of the specific American
historical experience. Traditionally, censorship involving restrictions on
spiritual freedom was stricter than economic freedom because of the fact that
American courts retreated from the battlefield of economic freedom in the face
of the demands of the political situation around 1937, rather than purely due
to constitutional theories such as the so-called democratic principles or the
value status of rights. The strict examination of the "suspect
classification" of race in equality cases is also related to the court's
historical reflection on the racist persecution of German fascists at that time
and on domestic racial discrimination and prejudice. In later court trial
practice, the fluidity of double standards in the fields of economic freedom
and spiritual freedom also reflects the different attitudes towards the two
human rights values in different historical periods. The rigid and extreme
structure of traditional double standards is rooted in the neglect of the
concrete value of human rights in individual cases.

The
fact of the change of double standard structure objectively needs a new legal
theory to justify it. However, since the basic framework of double standards is
not fundamentally shaken, we do not intend to break the traditional
jurisprudence or tear it down again, but just hope to integrate and improve it
based on the constituent elements of traditional jurisprudence, and to heal the
cracks of double standards theory in the new situation through reconstructing
jurisprudence. As we all know, traditional jurisprudence is basically derived
from the interpretation and extension of Lord justice stone's annotation iv.
The new construction of jurisprudence must also first return to the content of
annotated four, reinterpret it in today's perspective, and integrate
jurisprudence on this basis. Note 4 typifies the standard of examination
through the dual-line structure of the field of entity due process protection
and the field of equal rights protection. In order to reconstruct the legal
principle of double standard, we may first analyze the double line structure of
double standard, and then extract the specific theoretical elements for
reflection reconstruction.

By
note 4, we can see that the typed examination is based on the following
grounds: the constitution expressly forbids violations of fundamental rights,
that is, human rights as defined in the first ten articles of the amendment
shall be more strictly protected; Freedom of speech, freedom of religion, and
assembly election rights such as spiritual freedom of association, for it has a
basic status on democracy and freedom in the superior position in the
constitution, for the democratic political process an unimpeded and from
collapse, at the same time, also for fundamentally guarantee decision-making in
the field of economic freedom justification and legitimacy and democracy, the
national law the limiting behavior of the implementation of the spirit of
freedom should be strict censorship. The academic community generally believes
that this is the legal basis of the double standard theory of spiritual freedom
and economic freedom implied by the annotation. Later, some scholars believe
that this legal basis comes from the express stipulation of constitutional
norms, so it is called constitutional norms theory. Some scholars believe that
this jurisprudence is derived from the importance of the value of fundamental
rights, so it is called the theory of fundamental rights. The author thinks that
the internal logic of either the constitutional norm theory or the fundamental
right theory of value is consistent. Constitutional norms expressly prohibit
the infringement of certain rights because the constitution recognizes the
value and importance of these rights. It can be seen that the constitutional
norm theory can be essentially absorbed by the axiology of fundamental rights.

In
this case, we can try to reconstruct the jurisprudence from the theory of
fundamental rights. Let's start with the interpretation of the fundamental
right theory of value to double standards. As mentioned above, in reality,
economic freedom tends to be strengthened and spiritual freedom is not always
strictly examined. In theory, economic freedom is not absolutely inferior to
spiritual freedom, because some economic freedom has personality rights and
strong spiritual freedom. Can the theory of fundamental rights theoretically
bridge this disjunction in fact? In the author's opinion, if we do not define
its value importance from the nature of fundamental rights abstractly, but from
the influence of rights in specific cases on personal personality development,
that is, the relationship with personality rights to determine its value
importance, the cracks in the double standard can be theoretically bridged. In
essence, American courts have made a double standard distinction between
spiritual freedom and economic freedom, as well as a "two-track" and
"two-step" division of freedom of speech, because this jurisprudence
has played a substantial role.

It
is possible and necessary to define the specific value of basic rights by the
distance between basic rights and personality rights in specific cases. From
the perspective of possibility, any right involves the self-expression of personal
personality or the interests fully developed in society, so any right can be
measured by value from the relationship with the personality right. From the
point of necessity, any constitutional right has its complex form in reality,
and it is difficult to define its value abstractly. Phenomenon of human rights
increasingly rich in addition, the contemporary society, with the country to
the attention of the right to live in modern society, economic and social
rights often crisscross of rights with the personality right, at the same time
some spiritual freedom with economic freedom and personality that makes
fundamental rights value cannot be obtained from the nature of the right, but
must be based on the analysis of the measured and the practical importance of
personality right.

By
virtue of the core jurisprudence of the right of personality, a precise
argument can be obtained for the determination of the legality review standard
of the limitation of fundamental rights. If the infringement of spiritual freedom
can be divided into internal spiritual freedom and external spiritual freedom.
Internal spiritual freedom is an internal spiritual activity purely belonging
to individual thoughts and beliefs. As such activity will not have any impact
on the rights and freedoms of others, the violation of this field should be
examined with absolute guarantee. External spiritual freedom, as reflected by
the individual's ideological and spiritual activities, will have a certain
impact on society and other people. Therefore, restrictions in this field
should be examined in different ways, including the type of content of basic
rights in specific cases and the time and place of restriction. In the field of
economic freedom, it can also be divided into two parts according to its degree
of connection with the personality right. The economic freedom right closely
related to the personality right, such as the restrictions related to the
individual's right to survival and development, the professional freedom and
the right to education, should be examined with strict standards. However, the
restriction of economic freedom rights, which is related to personality rights,
is the discretionary power of a country's policy formation, so its
constitutionality should be judged by loose standards.

We
are still observing from note 4. Note 4 states that cases of discrimination
against ethnic, religious and other minorities that are separated and isolated
may seriously affect the functioning of the political process on which the
protection of those minorities depends. Later, people all think that the reason
for the strict review of suspect classification lies in the complementary
effect of the judicial system on the defects of democratic political procedure,
which is the democratic procedure complementarity. However, the author still
doubts that such minorities are often vulnerable in terms of social and
economic aspects, so it is hard to say that there is no economic consideration
for the strict examination of suspected discrimination.

Later,
the trial practice also classified the state's quasi-suspect behavior, namely,
the cases of discrimination against sex and illegitimate children, to carry out
a more rigorous examination than the rationality review -- moderate
examination, but there was no clear statement on its legal basis. As for the
general classification, which is based on the property status, foreigners,
sexual orientation, criminal record, etc., the court takes the rationality
review, and its legal basis is basically no one deeply studied. It can be seen
that the justification of the typed review standard in the field of equal
rights protection is not deep, and the existing arguments are not convincing
enough.